Citation Nr: 9935371
Decision Date: 12/21/99 Archive Date: 12/23/99
DOCKET NO. 96-17 008 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to monetary payment arising out of the grant
of an effective date of September 12, 1990, for the grant of
a 70 percent evaluation for post-traumatic stress disorder
(PTSD), for accrued benefits purposes.
2. Entitlement to a total rating based on individual
unemployability due to service-connected disability for
accrued benefits purposes.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
INTRODUCTION
The appellant is the widow of the veteran who had active
service from January 1941 to November 1945.
The Board of Veterans' Appeals (Board) notes that in its
previous decision in June 1998, it denied an additional issue
of entitlement to service connection for heart disease,
claimed as secondary to service-connected PTSD, for accrued
benefits purposes. At that time, the Board also indicated
that with respect to a claim for service connection for cause
of death, the appellant had filed a notice of disagreement
but had not been furnished with a statement of the case. The
record reveals that the appellant was furnished with a
statement of the case, but did not file a substantive appeal
as to this claim. Consequently, the Board finds that this
issue is not a subject for current appellate consideration.
As for the issue of entitlement to an earlier effective date
for a 70 percent evaluation for PTSD, this issue was
addressed by the Board in the context of entitlement only,
and the Board determined that an earlier effective date was
appropriate. Thereafter, while the appellant did not
disagree with this aspect of the Board's decision, in
response to a subsequent decision by the regional office (RO)
that accrued benefits could not be paid for more than two
years prior to the veteran's death, the appellant filed a
notice of disagreement and was furnished with an appropriate
statement of the case. Since the record also reflects the
filing of a substantive appeal as to this issue, the Board
finds that this issue has been adequately developed for
appellate review.
FINDINGS OF FACT
1. At the time of the veteran's death in March 1995, the
veteran had been in receipt of a 70 percent disability rating
for his service-connected PTSD for more than two years prior
to his death, and there are no accrued benefits payable to
the appellant for service-connected PTSD for accrued benefits
purposes.
2. From September 1990 until the veteran's death in March
1995, the veteran's PTSD was manifested by symptoms that had
been determined to cause severe social and industrial
impairment.
3. The veteran completed high school and had employment
experience primarily in the field of farming and agriculture.
The veteran last worked full-time in 1984 as a salesman.
4. From September 1990 until the veteran's death in March
1995, the veteran's service-connected PTSD precluded
substantially gainful employment.
CONCLUSIONS OF LAW
1. The requirements for payment of accrued benefits for PTSD
are not met. 38 U.S.C.A. § 5121 (West 1991 & Supp. 1999); 38
C.F.R. § 3.1000 (1999); Sabonis v. Brown, 6 Vet. App. 426,
430 (1994).
2. The requirements for a total disability rating for
accrued benefits purposes on the basis of individual
unemployability due to service-connected disability from
September 12, 1990, have been met. 38 U.S.C.A. §§ 1155,
5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to Monetary Payment Arising out of the Grant
of an Effective Date of September 12, 1990, for the Grant of
a 70 Percent Evaluation for PTSD, for Accrued Benefits
Purposes
Background
At the outset, the Board notes that at the time of its
decision of June 1998, the sole issue developed for appellate
review as to the veteran's service-connected PTSD, was
entitlement to an earlier effective date for the 70 percent
rating for this disability. In this regard, the Board found
that an earlier effective date of September 12, 1990 was
warranted for this disability. The Board did not make a
determination as to whether payment for accrued benefits was
warranted, as that issue was not before the Board. As the
record reflects some statements indicating curiosity at the
RO as to why the Board would grant an earlier effective date
for which actual payment of additional benefits would not
necessarily attach, the Board must respectfully point out
that there are many occasions when a favorable Board decision
does not necessarily confer a monetary benefit. For example,
the Board may grant service connection for a disability which
does not meet the criteria for a compensable rating.
Likewise, because the actual rate of compensation paid for
multiple service connected disabilities is not added, but is
combined under the table set forth in 38 C.F.R. § 4.25
(1999), not every award of an increased schedular rating for
a service connected disability results in the award of
additional monetary benefits to the claimant. In addition,
service connection and the payment of certain other benefits,
exclusive of compensation, to include dependents' educational
assistance, burial benefits, accrued benefits, surviving
spouses' loan guaranty benefits, special allowances under 38
U.S.C.A. § 1312, and medical care under the Department of
Veterans Affairs (VA) Civilian Health and Medical Program,
are not prohibited by the provisions of 38 U.S.C.A. § 105
(West 1991); 38 C.F.R. §§ 3.1(n), 3.301 (1999). See
VAOPGPREC 2-98 (February 10, 1998); see also Barela v. West,
11 Vet. App. 280 (1998). Thus, there are numerous instances
where a determination of legal entitlement to a benefit
provided under title 38 United States Codes does not
automatically result in an award of compensation and the
question of legal entitlement is a separate determination
from a determination of entitlement to a monetary award.
As for the 70 percent evaluation for PTSD, as was noted by
the RO, at the time of the death of the veteran, the veteran
had already been in receipt of a 70 percent disability
rating, effective from October 1, 1991, more than two years
prior to the his death in March 1995.
The law provides that upon the death of a veteran any accrued
benefits are payable to the veteran's spouse, children (in
equal shares), or dependent parents (in equal shares). 38
U.S.C.A. § 5121(a)(2) (West 1991 & Supp. 1999); 38 C.F.R. §
3.1000(a)(1) (1999). Accrued benefits are defined as
periodic monetary benefits to which an individual was
entitled at death based on evidence in the file at death and
due and unpaid for a period not to exceed two years prior to
the last date of entitlement (the date of death). 38
U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a).
Where the law is dispositive of a claim, the claim should be
denied or the appeal terminated because of the absence of
legal merit or the lack of entitlement under the law.
Sabonis v. Brown, supra. Consequently, if the statutory
requirements for an award of accrued benefits are not met,
the claim would have to be denied by operation of law.
Analysis
The Board notes that a determination as to whether the
appellant has submitted a well-grounded claim need not be
addressed. The concept of well-groundedness applies to the
character of the evidence presented by a claimant. For
purposes of this decision, as there is no dispute as to the
evidence, but only to the law and its meaning, the concept of
well groundedness is not found to be applicable. See
Sabonis.
The relevant facts in this case are not in dispute. The
veteran was entitled to and was paid compensation at the rate
of 70 percent for his PTSD disability, effective from October
1991.
There is no legal merit to the appellant's general assertion
that accrued benefits for the veteran's 70 percent evaluation
for PTSD should be paid for more than two years prior to the
death of the veteran. She has offered no cogent legal basis
as to why she believes such benefits should be paid. As set
out above, accrued benefits are limited to the two years
preceding death, and the record shows that the veteran had
been paid all compensation due him during the two-year period
immediately prior to his death in March 1995. Thus, no
benefits were due and unpaid for the 2-year period prior to
March 1995.
Accordingly, as the veteran was paid all that was due to him
during the relevant time period, there are no unpaid monetary
benefits to which the appellant is entitled. As a matter of
law, the appellant is also not entitled to any compensation
benefits due to the veteran and unpaid for any period of time
prior to the two years before March 1995.
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999, hereafter, "the Court") has held that where the
law and not the evidence is dispositive, the Board should
deny an appeal because of the absence of legal merit or the
lack of entitlement under the law. See Sabonis. The
appellant in this case has failed to allege facts which meet
the criteria set forth in the law or regulations and,
accordingly, her claim must be denied.
II. Entitlement to a Total Rating Based on Individual
Unemployability Due to Service-connected Disability for
Accrued Benefits Purposes
Background
Based on the Board's findings below, the appropriate date for
the commencement of entitlement to a total disability rating
might again exceed the period for which actual payment of
additional compensation is permissible under 38 C.F.R.
§ 3.1000.
As a preliminary matter, the Board finds that the appellant's
claim for a total disability rating for accrued benefits
purposes on the basis of individual unemployability is, in
essence, a claim for increased rating which, in general, is
well grounded. Procelle v. Derwinski, 2 Vet. App. 629
(1992). The Board is satisfied that all relevant facts have
been properly developed and that there is no further duty to
assist with respect to the claim.
The claim for a total disability rating for compensation
purposes on the basis of individual unemployability, in
general, is not inextricably intertwined with an increased
rating claim as an individual unemployability claim does not
necessarily require a specific disability rating for
consideration. Vettese v. Brown, 7 Vet. App. 31 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Total disability ratings for compensation based on individual
unemployability may be assigned where the schedular rating is
less than total, when it is found that the disabled person is
unable to secure or follow a substantially gainful occupation
as a result of a service-connected disability ratable at 60
percent or more, or as a result of two or more disabilities,
provided at least one disability is ratable at 40 percent or
more, and there is sufficient additional disability to bring
the combined rating to 70 percent or more. 38 C.F.R.
§§ 3,340, 3.341, 4.16(a).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1999).
An August 1985 special psychiatric evaluation revealed that
the veteran had a farming background and that he currently
worked in the field of agriculture. He indicated that he had
previous employment as a manager for United States Steel.
The Board determined in its September 1986 decision that the
veteran suffered from severe industrial impairment.
Service connection is solely in effect for PTSD, and the
current rating of 70 percent was assigned by an August 1994
Board decision, with an original effective date of October 1,
1991. In the August 1994 Board decision, the Board further
found that the veteran's service-connected PTSD did not meet
the criteria for a 100 percent rating under the applicable
rating criteria, but remanded the issue of entitlement to a
total disability rating based on individual unemployability
based on the determination to increase the evaluation for
PTSD to 70 percent. A subsequent rating decision in
September 1994 denied a total disability rating based on
individual unemployability due to service-connected
disability. The June 1998 Board decision granted an earlier
effective date of September 12, 1990 for a 70 percent rating
for PTSD.
In view of the 70 percent evaluation for PTSD, the veteran
had surpassed the minimum 60 percent single disability
requirement, thereby meeting the criteria for consideration
of a total disability rating for compensation purposes,
effective from September 12, 1990. 38 C.F.R. § 4.16(a).
A VA hospital summary for the period of September to October
1990 reflects diagnoses of cervical and spinal stenosis,
cardiomyography, congestive heart failure, history of
depression, history of peptic ulcer disease, and benign
prostatic hypertrophy.
February 1992 VA mental disorders examination revealed that
the veteran completed his high school education and
subsequently took courses in agriculture at a VA
Rehabilitation School over a period of approximately three
years. The veteran was currently unemployed and had last
been employed as a salesman. It was noted that the veteran
carried a pistol everywhere since getting out of the service.
It was also noted that he had significant difficulty with
relationships with other people. The examiner provided a
diagnosis of PTSD.
The veteran later testified as to the disabling
manifestations of his psychiatric disability at a hearing
held before a hearing officer at the RO in November 1992. At
that time, he related that he was impatient and hard to get
along with (transcript (T.) at pp. 2-3). He believed that
his condition had worsened since 1986 (T. at p. 3). More
recently, he could not stand to be around crowds (T. at pp.
3-4). He discussed difficulties in maintaining relationships
and consequently avoiding people (T. at pp. 3-4). His
thoughts of war confused his perceptions of current reality
(T. at p. 4). Loud noises scared him even while he was
hunting, and he was easily aggravated and very aggressive (T.
at p. 4). He had last worked in 1985 as a sales manager for
an agricultural company (T. at p. 5).
A death certificate reflects that the veteran died in March
1995 due to end stage bladder carcinoma.
At the appellant's hearing before a member of the Board in
March 1984, the appellant testified that when she originally
met the veteran, he was farming, and that he later went into
the business of selling farm chemicals (T. at p. 5). He did
this for one company from 1971 to late 1983, at which time he
briefly worked for another company until July 1984 (T. at p.
5). In 1984, she indicated that the veteran was very quick-
tempered (T. at p. 5). She further indicated that he went
into the hospital in August of 1984 for PTSD (T. at p. 5).
It was noted that in September 1986, the veteran had been
classified by the Board as suffering from severe industrial
impairment (T. at p. 6).
Analysis
The Board has reviewed the evidence of record, and again
notes that with the 70 percent rating for PTSD, the veteran
met the threshold requirements under 38 C.F.R. § 4.16(a),
effective from September 12, 1990. Thus, the remaining issue
for consideration is whether his service-connected PTSD
disability precluded him from engaging in substantially
gainful employment (i.e., work which is more than marginal,
that permits the individual to earn a "living wage") from
September 12, 1990 until his death in March 1995. Moore v.
Derwinski, 1 Vet. App. 356 (1991).
The adverse effects of advancing age and nonservice-connected
conditions may not be used to support the claim. In
addition, the veteran had some nonservice-connected
disabilities which would also have had an impact on
employment possibilities.
On the other hand, it is clear from the medical evidence of
record dated in and after September 1990 that the veteran's
service-connected PTSD severely restricted his ability to
participate in gainful employment for which he might
otherwise be qualified. The record reflects that although he
generally worked during his lifetime in the farming industry,
his last position was specifically in sales. In addition,
the February 1992 VA mental disorders examination report
indicated significant difficulties with relationships with
people. Moreover, at the time of his personal hearing in
November 1992, the veteran testified to difficulty getting
along with others, and that he was easily aggravated and very
aggressive, which the Board finds to have been particularly
significant in view of his most recent previous employment as
a salesman. The Board further notes that the record after
September 1990 did not reveal a medical opinion that
specifically indicated that the claimant was employable.
Therefore, giving the veteran the benefit of the doubt under
38 U.S.C.A. § 5107(b), the Board finds that the veteran's
service-connected disability of PTSD, with a rating of 70
percent, was of sufficient severity between September 1990
and his death in March 1995 to preclude gainful employment,
even if there were no nonservice-connected conditions.
Accordingly, a total disability rating for accrued benefits
purposes on the basis of individual unemployability was
supported by the evidentiary record, effective from September
12, 1990.
ORDER
Entitlement to payment for accrued benefits based on an
earlier effective date of September 12, 1990 for a 70 percent
evaluation for PTSD is not warranted.
Entitlement to a total disability rating based on individual
unemployability due to service-connected disability for
accrued benefits purposes is granted, subject to the law and
regulations governing the payment of monetary benefits.
Richard B. Frank
Member, Board of Veterans' Appeals